Draft Health and Safety at Work (Amendment No. 4) (Jersey) Law 200-
European Convention on Human Rights
In accordance with the provisions of Article 16 of the
Human Rights (Jersey) Law 2000 the Minister for Social Security has made the
following statement –
In the view of the Minister for Social Security the
provisions of the Draft Health and Safety at Work (Amendment No. 4)
(Jersey) Law 200- are compatible with the Convention Rights.
(Signed) Deputy I.J. Gorst of St. Clement
REPORT
The Health and Safety at Work (Jersey) Law 1989 is the primary occupational health and safety Law in Jersey. Article 3 of the Law sets out the general duty placed on employers to ensure the health, safety and welfare of their employees.
The duty under Article 3 is limited by the phrase “so far as is reasonably practicable”. The legal interpretation of this phrase requires an employer to balance the sacrifice, either in money, time or trouble, on the one hand, against the nature of the risk involved on the other hand. This, in effect, requires a risk assessment process to be carried out. However, it is considered that the lack of specific wording in Article 3 setting out a reference to need for this risk assessment process to take place, results in employers being confused and, in certain instances, not meeting the existing legal requirement placed on them.
The proposal to amend the Law to include a requirement for them to carry out an assessment of risks is therefore intended to clarify and assist employers in meeting the existing duty placed on them under Article 3.
An employer with 5 or more employees is required to prepare a written health and safety statement. The amendment confirms that this statement must include the recording of significant risks resulting from the employer’s activities and the manner in which they are addressed.
The amendment also sets out proposals to reflect the need for an employer to effectively communicate the written health and safety statement by requiring it to be prepared in a language which can be understood by his employees.
The number of employees which triggers the need for a written health and safety policy statement may currently only be changed by Regulations made by the States. The amendment puts forward a proposal to allow the Minister to make changes to this requirement by Order.
There are no implications for the financial or manpower resources of the States arising from this draft Law.
European Convention on Human Rights
Article 16 of the Human Rights (Jersey) Law 2000 requires the Minister in charge of a Projet de Loi to make a statement about the compatibility of the provisions of the Projet with the Convention rights (as defined by Article 1 of the Law). On 12th March 2009 the Minister for Social Security made the following statement before Second Reading of this Projet in the States Assembly –
In the view of the Minister for Social Security the provisions of the Draft Health and Safety at Work (Amendment No. 4) (Jersey) Law 200- are compatible with the Convention Rights.
Explanatory Note
This draft Law amends the Health and Safety at Work (Jersey) Law 1989. Under that Law, every employer is required to ensure, so far as is reasonably practicable, the health, safety and welfare at work of his or her employees. It falls to the employer, in the discharge of that duty, to assess what is reasonably practicable by weighing the likelihood and consequences of any harm to employees against the measures that would be required to eliminate or reduce the risk of that harm occurring. The amendment made by Article 1(a) of this draft Law makes it clear that the duty includes that assessment.
An employer of 5 or more employees is already required to maintain a written statement of his or her health and safety policy. The amendment made by Article 1(b) of this draft Law makes 3 changes to, or relating to, that requirement.
Firstly, it extends the requirement so that the employer must also maintain a written statement of his or her assessment of significant risks, and what the employer has done to eliminate or reduce them, and bring the statement to the attention and notice of employees.
Secondly, it requires that the statement is in a language that the employer’s employees understand. So, if an employer has an employee whose first language is not English, but whose knowledge of English is sufficient that the employee would understand the statement in English, the requirement is satisfied if the statement is provided in English. But, if the employee’s knowledge of English is so limited that the employee would not understand the statement in English, the employer must provide the statement in a language in which the employee will understand it.
Thirdly, it enables the Minister for Social Security to amend, by Order, the number of employees by reference to which the requirement to maintain a written statement is imposed.
If this Law is adopted, employers will have 3 months from the day that the Law is registered in the Royal Court in which to revise their statements so as to comply with the new requirement.
